Robertson: A Pardon’s Impact on the Character of Discharge

Tony W. Roberson v. Eric K. Shinseki, Opinion Number 11-3521, decided March 15, 2103, concerns the impact of a presidential pardon on the character of discharge.

The veteran was convicted of a going AWOL and was given a bad conduct discharge, which was listed on his paperwork as a discharge under conditions other than honorable.

In 1974 the veteran filed a claim for VA benefits and the RO denied the claim because the conditions of his discharge precluded VA benefits.

In 1976, he received a presidential pardon through a Reconciliation Service Program created by President Ford.  The pardon proclamation stated the “clemency discharge shall not bestow entitlement to benefits administered by the [VA].”

The veteran applied for VA benefits again in 1977.  The RO denied without any discussion of the presidential pardon.  A character of discharge upgrade was denied by the ABCMR in 1978.  The veteran applied again in 1981.  The RO found the clemency discharge did not have any effect on the prior denial.

This appeal arose from a 2008 denial.  There, the veteran also claimed CUE in the initial determination.

The Court considered the impact of the pardon and specifically looked at Supreme Court case law that initially supported a blotting out of the underlying crime and more recent case law that takes a less expansive view of the impact of a presidential pardon.  They Court ultimately determined that a “Presidential pardon relieves the pardonee of the legal disabilities incident to a conviction of an offense (in this case, the legal punishment of a general court-martial conviction), but does not eliminate the consideration of the conduct … that led to that conviction.”  In other words, the VA will still consider the conduct when characterizing the nature of the discharge.

Decided by Judges Lance, Bartley, and Greenberg.